Rod v. Illinois

For over a week, I have maintained that everything about how the Administration rolled out its attempted expansion of FamilyCare smacked of an intention to create a legal confrontation with the General Assembly.

My initial inclination was that a lawsuit would be filed challenging the authority of JCAR. Had I thought it through more thoroughly, however, I should have seen this coming.

On Tuesday, the legislature's Joint Committee on Administrative Rules turned down the state Department of Healthcare and Family Services' request for an emergency expansion of the Family Care program. The bipartisan panel of lawmakers was established in 1977 to oversee rules proposed for state programs. Its decisions generally are followed.

A spokeswoman for Gov. Rod Blagojevich contended Friday, however, that the committee does not have the ability to stop the Family Care expansion.

"JCAR's role is merely advisory - it does not have the constitutional authority to suspend the regulation," Abby Ottenhoff said in an e-mail...

Ottenhoff would only say that the governor's office has no plans of its own to challenge the committee's authority in court.

In other words, the Administration has decided to ratchet up its disregard and contempt for the Legislature, the Illinois Constitution, and by extension, the citizens of Illinois, by going forward with plans to provide expanded health care coverage despite a clear question as to their authority to do so, and despite the JCAR's suspension of the HFS emergency rule.

Let me repeat what I have said in previous posts AGAIN - I emphatically support expanded access to health care. My issue here is procedural and Constitutional.

For the sake of argument, let's assume that there is a legitimate question as to the authority of the Administration to take this path of action, and a legitimate question as to the authority of JCAR to block it. Common sense and decency (both increasingly dwindling commodities in our state capitol) would dictate that a binding legal determination be had BEFORE any attempts to enroll any new FamilyCare participants.

Failure to do so creates a situation in which patients may seek medical care believing that they have coverage only to later learn that they were mistaken (misled?). Health care providers are similarly jeopardized since they have no way of knowing whether a FamilyCare patient is a legitimate one, or one whose status is uncertain. Ironically, this could well lead to providers refusing to treat qualifying patients due to eligibility questions.

In light of this, for the Administration to proceed without clear authority in this critical arena is a reckless and irresponsible course of action.

If the Administration would put as much effort into building support within the Legislature as it has in trying to find ways to subvert the process, these issues would likely not exist, and other crucial matters such as mass transit funding and a capital bill may have been resolved months ago.

What next? I can't say for sure. But I would surmise that there exist at least two questions that are ripe for review. First, does JCAR have the authority to suspend the administrative rule at issue? Second, and tangentially related, does the Administration, through HFS, have the authority to undertake this action or does the expansion amount to an unauthorized attempt to expend unappropriated funds.

This is not a bright day for state government, nor for the people that we represent.

UPDATE - Aaron Chambers also has a good article on the subject.